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Absenteeism and Consequences
by Hew Soon Kiong
The obligation of an employee to be present at his employer’s workplace to render the services expected of him/her is a fundamental element of employer-employee relationship. Alfred Avins in Employees Misconduct at page five said: “The necessity for employees to be present for duty at the time and place required is obvious. No enterprise of any kind could function if employees were able to come and go as they choose….”

O.P. Malhotra in his book The Law of Industrial Disputes (Second Edition) at page 581 to 582 said: “No employee can claim leave of absence as a matter of right, and remaining absent without leave will itself constitute gross violation of discipline. Hence, continued absence from work without permission will constitute misconduct justifying the discharge of a workman from service.”

The right of the employer to grant leave according to the exigencies of business is well established. The expression “leave” means of absence, that is to say, the permission obtained by an employee from his employer relieving him from the duty of attending to work (see B.R. Ghaiye on Misconduct In Employment, page 708).

In other words, the person seeking leave cannot absent himself from duty in an unauthorized manner before such permission is given or leave sought is granted.

Whenever an employee requires leave, it is necessary for him to send the leave application even if an employee has some just cause for absence. The employee is bound by the contract of service under which he is obliged to come to work everyday unless he was authorized not to do so (on approved leave or rest day). Absence from work without prior authorization amounted to a breach of contract even when the absence is only one day. In the case of Metromix Sdn Bhd vs Ismail Bin Sulaiman (Award No: 91 of 1996), the court had stated: “It cannot be denied a workman’s leave is granted according to the exigencies of his service. Leave cannot be claimed as of right and the employer reserves the discretion to refuse or revoke leave. It, therefore, connotes the necessity of obtaining permission from his employer relieving him from the obligation of attending his work. Unless the permission of leave is granted, the workman seeking leave is approved by the proper approving authority he runs the risk of being absent without leave and in breach of the statutory provision in the Employment Act 1955, Section 15(2).”

Section 15(2) of the Employment Act 1955 (EA) states: “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 his employer, unless he has a 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.” The word “consecutive” has been defined in the Oxford Advanced Learner’s Dictionary of Current English (Fifth Edition) as “coming one after the other without interruption or following continuously”. It is obvious that an absent workman misconduct himself if he was absent from work without reasonable excuse or, if he had such reasonable excuse, fails to inform or attempt to inform his employer of such excuse prior to or at the earliest possible opportunity during his absence.

The question before court is whether the employer is right in claiming that the employee had “self terminated” his contract of employment. In the case of Gim Aik Estate Sdn Bhd, Malacca vs National Union of Plantation Workers [1982] 1 MLLR 117, his Lordship Justice Harun stated (as he was then): “We also find that there is no such thing as statutory termination. Breach of contract of service and termination of employment are two different things. A breach of contract of service may or may not leaf to termination of employment. Section 15 of the Ordinance is only a deeming provision. It cannot be the intention of the legislature that the employees automatically lose their jobs whenever an employer fails to pay their wages. Nor do we foresee employees terminating their contracts of service every time an employer delays paying their wages for more than seven days after the due date.”

The consequence of any such breach is dependent on the confitions of employment and the provisions of the Ordinance. Absence without priot leave for more than two days (as in the instant case) is deemed to be a breach of the contract of service by S.15(2) of the Ordinance. If the circumstances of the breach are such that it justidies termination of service, then the employer may terminate the contract of service under S.13(2) of the Ordinance, which provides: “Either party to a contract of service may terminate such contract of service without notice in the event of any willful breach by the other party of a condition of the contract of service.”

It is settled that an employer has the right to treat a contract of employment as having been repudiated by his employee who has been absent for more than two consecutive days without reasonable excuse and without informing his employer at the earliest opportunity as stipulated under S.15(2) of the Employment Act. The employee had by his conduct breached the trust and confidence relationship between an employer and an employee.

No reasonable employer is expected to wait indefinitely for the employee to return to work and would want to continue to have such as employee in his employment.

The employee had committed gross violation of discipline which is tantamount to misconduct and if allowed to be practiced in the company would not only encourage others in the company to do the same but also proper control of administration would be in jeopardy.

In the case of Bernas (Sarawak) Sdn Bhd vs Idris Let (Award No:686 of 2000) in [2000] 3 ILR, page 469 to 472, the Industrial Court held that: “… the claimant was consistently absent from work without leave, late from work and had disregarded procedural propriety when applying for emergency and sick leave. This set a bad precedent for the other staff of the company which cannot be allowed. Therefore, the court finds that the claimant’s dismissal was with just cause and excuse”.

The late Fong Seng Yee, the then president of the Industrial Court, in Gissco Sdn Bhd vs Jagjit Singh Mahinder Singh (Award No: 13 of 1988) observed that: “Moreover S.15(2) of the Employment Act 1955, does not require an inquiry – it is for the employee to give an explanation to the satisfaction of the employer why he was absent.”

The employer has the right to terminate the services of the employee without notice as the employee had willfully breached the condition of the contract of service by invoke S.13(2) of the Employment Act.

In the case of Harapan Ramai Sdn Bhd, Johor vs Yajadesan Raman (Award No: 473 of 1997) in [1997] 3 ILR, page, it is opinion of the court that the case of dismissal for misconduct is different from committing a fundamental breach of the contract of employment. There is no need for an inquiry in the case of fundamental breach as compared to a case of dismissal for misconduct.

In the case of Pulai Mewah Sdn Bhd vs Leong Fook Heng (Award No: 84 of 2002) in [2002] 2ILR, page 290, the court agrees with the company’s submission that S.13 of the Employment Act applies here, that is where the employer is exercising his contractual right to terminate the claimant. It has been held that failure to hold domestic inquiry is not fatal to the case.

In the case of American International Assurance Co Ltd vs Seah Cheek Teck [1996] 1 ILR, page 239 which states: “Our highest Court has held that the failure of natural justice by itself does not stop the Industrial Court from coming to a finding as to the justification for dismissal. This is because the hearing before the Industrial Court itself provides a better and impartial forum for the employee than the domestic inquiry for the Industrial Court itself provides a better and impartial forum for the employee than the domestic inquiry for the employee to be heard in accordance with the rules of natural justice.” However, the employer should afford an opportunity to the accused employee to “turn over to a new leaf”, such a warning to inform him about his misconduct before dismissal as the court will inquire into a complaint that the employer’s decision has been harshly or unfairly made. It is possible to assert that the employer has a legal duty to treat his employees with due respect and consideration, mindful of their needs and problems and sympathetic of their difficulties.

Dismissal should be regarded as a last resort to be sparingly when all other corrective attempts in progressive discipline have failed, and the employee’s usefulness to the company is totally lacking. Employer reserves the right to institute a claim against the employee at the nearest Labour Department under S.69C(1) of the Employment Act for indemnity for termination of contract of service, if the employee abandoned his job or absconded without notice, or if notice was given, without waiting for the expiry of that notice. The indemnity due to the employer shall be an indemnity of a sum equal to the amount of wages, which would have accrued to the employee during the term of the notice or during the unexpired term of notice.