Updated: Dec 17, 2022
Employee Absenteeism Vs Puzzle
To successfully run a business in the modern-day is analogous to putting together a mammoth puzzle.
A jigsaw puzzle in which the pieces, which represent your staff and the goals they have, are dispersed across the board. And the whole thing stays unfinished if even one of the pieces is absent from the puzzle.
Having said all of that, the problem of employee absenteeism in the workplace is the same here as anywhere else.
Finding one or two empty seats at your company is an everyday occurrence if you are a member of the HR department or a manager.
In most cases, you will approve leave requests submitted by your staff to give them a good rest or time to attend to their personal matters. For example: opening a bank account, issuing passports, settling children into school, etc.
Or, the employees could take unpaid leave without giving any advance notice, which is permissible in specific situations that might differ from company to company depending on the nature of the conditions.
General Principle 1: Absenteeism is a misconduct
Absence from work without permission is an act of misconduct.
Section 15(2) of the Employment Act 1955 ("the EA") (section 13A of the Labour Ordinance [Sabah Cap. 67] or section 14A of the Labour Ordinance [Sarawak Cap. 76]) states that:
an employee is considered to have breached 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 the reason for his absence.
《1955年劳工法令》（"EA"）第15（2）条 [《劳工条例》[沙巴州第67章] 第13A条或《劳工条例》[砂拉越州第76章] 第14A条）规定：
Whenever an employee is absent from work without permission and has no reasonable cause, disciplinary action should be initiated against that employee.
When an employee is absent for one or two days, the employer should, via a show-cause letter, demand the employee to explain the absence.
It is necessary to send a warning letter to him if he cannot provide a valid explanation for the absence.
If the employee continues his pattern of being absent from work without approval for a second time, the employer may send a second warning letter to the employee.
Any additional instances of similar behaviour should result in a severe consequence, such as being placed on temporary suspension without pay, being demoted, or even being dismissed from their position.
The reasons that employees give for their absences are incredibly diverse and numerous. When an employee is absent from work without approval, employers should give them the chance to explain why they were absent and listen to their explanations. In the instances in which his justification is not acceptable, then only disciplinary action is taken.
The Law provides that either party to a contract of service may terminate such contract of service without notice in the event of any wilful breach by the other party of a condition of the contract of service.
For more information, please see Section 12(2) of the Sabah Labour Ordinance, Section 13(2) of the Sarawak Labour Ordinance, and Section 13(2) of the Employment Act.
更多信息，请参见沙巴劳工条例第12(2)条，砂拉越劳工条例第13(2)条，以及 1955 年劳工法令第13(2)条。
General Principle 2: Employees do not have the right to go on leave without the approval and consent of their employers
In the case Crowne Plaza Riverside Kuching v. Mohamad Zulkarnaen Suhaili  2 ILR 148 (Award No. 354 of 2000), the employee was terminated because he failed to provide a valid explanation for his absence from work and was thus dismissed.
This is what the Industrial Court had to say:
“An absent workman misconducts himself if he is either absent from work without reasonable excuse or, if he has a reasonable excuse, fails to inform or attempt to inform his employer of such excuse prior to or at the earliest opportunity during his absence.”
在 Crowne Plaza Riverside Kuching v. Mohamad Zulkarnaen Suhaili  2 ILR 148（2000年第354号裁决）一案中，该雇员因未能提供有效的缺勤解释而被解雇。
General Principle 3: Exception to General Principle No 2
The employer, on the other hand, is not allowed to dismiss an employee if that individual has informed or sought to inform his employer and if the employee has a valid reason for being absent from work.
In "Wan Ahmad Firdaus Bin Wan Rossman v Hong Leong Bank Berhad" [Industrial Court Case No: 15/4-88/18], the Company decided to terminate its employment because the employee had been absent from work for four consecutive days.
Because the employee's position required him to perform his duties away from the office, the Industrial Court ultimately decided in his favour when the matter was heard there.
The employee's job description required him to interact with customers, and he did so in the capacity of a sales executive.
As a result, when it came to a circumstance like this one, the court took the employee's side and agreed that he was dismissed for being absent from the office unjustly.
一般原则 3：一般原则 2 的例外情况
在 "Wan Ahmad Firdaus Bin Wan Rossman v Hong Leong Bank Berhad" [工业法庭案件编号：15/4-88/18] 中，公司决定终止其雇佣关系，因为该雇员已经连续四天缺勤。
General Principle 4: In relation to leaves
According to the decision that was made in the case Norsechem Latex Products Sdn Bhd v. Nalang Kani Suppiah  2 ILR 392, an employee cannot claim a leave from work, such as annual leave, as a right and the employer always has the right to decide whether or not the employee will receive the leave.
In the case of Sandran a/l Perumal v. Nestle Manufacturing (M) Sdn Bhd  2 ILJ 356, the Industrial Court came to the conclusion that an employee is not permitted to take leave until and unless they get special approval to do so from their employer.
根据 Norsechem Latex Products Sdn Bhd v. Nalang Kani Suppiah  2 ILR 392 一案的裁决，雇员不能将年假等工作假期作为一项权利来要求，雇主始终有权利决定雇员是否获得假期。
而在 Sandran a/l Perumal v. Nestle Manufacturing (M) Sdn Bhd  2 ILJ 356 一案中，工业法庭得出的结论是，在得到雇主的特别批准之前，雇员是不允许请假的。
Can an employee be dismissed for absence without leave?
An employee who has been absent from work for more than two consecutive days may be grounds for disciplinary action under the terms of the Employment Act or the Labour Ordinances since it is presumed that he has violated the terms of his employment contract.
This indicates that after the third day that an employee has been away without leave, an attempt should be made to find out why he has not reported for duty.
This should be done regardless of whether or not the individual has requested leave.
If the employee's whereabouts and the cause for their absence are unknown, a show-cause letter should be issued to the employee's residence demanding him to explain their absence. It would be reasonable to set a short deadline.
The letter may indicate that if he does not react, the Company will presume that he is no longer interested in his position, and his employment contract will end on the specified date if he does not respond.
There is no legal precedent for the concept of "self-termination" in Malaysian labour law, so the letter to the employee should not imply that the employee has such an idea. However, given that the employee has violated the terms of his employment contract, the employer is within his or her rights to terminate the agreement.
It is imperative to have clear policies and procedures regarding leaves of absence to reduce the distress caused by employee absenteeism.
The approval of an employee's request to take emergency leave should be issued carefully, and only when the employee can offer proof of the emergency, they are experiencing.
The employee was transferred from Trengganu to Kuala Lumpur, but he insisted that he would not accept the transfer.
As a direct consequence of this, his employer wrote to him and granted him additional time to fulfil the requirements of the order of transfer.
On the reporting day, he did not report to work.
As a result, the employer sent him a letter three days after the date on which he was supposed to report informing him that as a result of his absence from work, it was deemed that he had terminated his employment contract.
The Court noted that the employee's terms and conditions of employment did not include an express clause giving the right to the employer to transfer him.
Nevertheless, the Court pointed out that transfer is a managerial prerogative, i.e. an employer has an implied right to transfer an employee.
If the employee believes the transfer order is not legitimate for some reason, he ought to report for duty at the new place of work and then make known his dissatisfaction with the transfer order through the appropriate channels.
The Court said, "It is, therefore, the Claimant's duty in the instant case to first obey the transfer order and then challenge the alleged mala fide of the transfer order in separate proceedings."
A number of cases were cited to support this principle.
The Court summarized the position: "The Claimant's consent is not required to exercise that prerogative (transfer). In the circumstances, if the Claimant still refuses to report for work at the place he is transferred to, i.e. Kuala Lumpur head office then he is deemed to have absented himself without leave of the Company and therefore his conduct does amount to major misconduct and a breach of Section 15(2) of the Employment Act 1955."
The Industrial Court upheld the dismissal of the employee.
General Principle 5: Condonation
If an employer believes that an employee's absenteeism is unacceptable, the employer should address it promptly to avoid possible adverse consequences that absenteeism has been condoned, accepted or excused by the employer because it will result in the employer not being able to later use the employee's absence or tardiness as a reason for termination.
It is possible that the employer may be perceived to condone or accept such behaviour, which will result in the employer being unable to use the employee's absence or tardiness as grounds for dismissing an employee at a later date.
The employee in the case of Zulkefly Ibrahim v. Airport Limo (M) Sdn Bhd  2 LNS 0299 was absent from work from 25 September to 8 November 2001.
However, the employer continued to employ him until 26 November 2001.
The Industrial Court determined that the employer had condoned the employee's alleged wrongdoing and that the employer cannot, as a result, now use it to justify the employee's dismissal because the employer had previously condoned it.
在 Zulkefly Ibrahim v. Airport Limo (M) Sdn Bhd  2 LNS 0299 一案中，该雇员在2001年9月25日至11月8日旷工。
If an employee is found to be absent from work, the employer should immediately take disciplinary action through a verbal warning, Warning Letter, Show Cause Letter, or disciplinary actions that include demotion or dismissal, rather than ignoring or condoning such behavior until it becomes unbearable.
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Payment and Wages
Unpaid Leave Calculation
Incomplete Month Wages Calculation
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