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Absence from Work Without Leave or Approval Constitutes Misconduct

Updated: Oct 17, 2022



Bernas (Sarawak) Sdn. Bhd.


v


IL



  • Labour Department, Sibu

  • Award No. 686 Of 2000 [Case No: 8/4-659/99]

  • 9 December 2000


The Facts

The claimant, who began working for the company as a Fogger on June 15, 1989, was dismissed on February 11, 1999. He asserts that he was dismissed without reasonable cause or excuse and requests reinstatement.


The company contends that the claimant was absent from work from January 26, 1999, to January 30, 1999, without leave or prior approval. In addition, he had failed to inform or attempt to inform the company of his absence.

The claimant went to the office on February 1, 1999, to submit his application for sick leave for that day. Still, he did not submit any leave applications for January 26, 1999, through January 30, 1999.


The claimant did not show up for work on the 2nd or 3rd of February 1999 as well.


On February 3, 1999, in a report sent to the managers at the Unit Perhubungan Pekerja in Kuala Lumpur, the Company stated, among other things, that the claimant had been absent from work for a period of eight days without approval or leave. On the same day, a show-cause letter was issued to the claimant,


The Claimant
  • does not deny that he was absent on January 26, 1999, to January 30, 1999.

  • however, he states that he did try to call the office to apply for leave verbally

The Company contends that
  • They have established that the claimant was absent for seven days from 26 January 1999 to 3 February 1999

The Law

It is obvious that an absent workman misconducted himself if he was absent from work without a reasonable excuse or, if he had such a reasonable excuse, failed to inform or attempt to inform his employer of such excuse before or at the earliest possible opportunity during his absence.


The Evaluation Of Evidence And Findings
  • The claimant has not shown to the court that he had any reasonable excuse for his absence,

  • The court cannot accept the claimant's explanation that he had verbally obtained leave from an administrative clerk of the Company.

  • The court notes that in the claimant's reply to the show cause letter, there was no mention by the claimant that he had called the office to apply for leave from January 26, 1999, to January 30, 1999.

  • What is also significant is that even if oral approval had been given, the claimant did not bother to put in a formal application for the leave after he turned up at the office on February 1, 1999.

The court finds that the misconduct alleged against the claimant has been proved.


The only issue is whether the punishment of dismissal is warranted.


The Company presented documentary evidence of the claimant's attendance records dating back to 1995 to demonstrate that the claimant had maintained a pattern of being:

  • absent from work without approval or leave from the company,

  • reporting to work late without a valid reason or excuse,

  • consistently applying for sick leave and taking emergency leave without following the proper procedures of the employer, and

  • failing to provide a valid reason or excuse for any of these behaviours.

The Company further contended that:

  • the attendance records of the claimant had been unsatisfactory,

  • the claimant cannot be allowed to set a bad example to the other staff of the company

  • hence, the termination of the claimant is justified, and the company has acted in all fairness to the claimant and with good faith

The Conclusion

The court arrived at the conclusion that the disciplinary action taken by the company of dismissing the employee was appropriate in light of the facts and circumstances of this instance.


When the company considered the claimant's previous behaviour, they realised that the decision to dismiss the claimant was more than justified and went forward with it nevertheless.



Award

The claimant's claim is dismissed. According to the court's award, the claimant was dismissed with just cause and excuse (for reasonable and sufficient grounds).




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