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Dismissal: Absence for Too Long Without a Valid Reason, Performance has been Badly Affected

Updated: Oct 28, 2022

Dismissing an employee should only be done as a last resort when all other forms of disciplinary measures have failed, and the employee is no longer relevant.




P Mewah Sdn. Bhd. vs FHL Industrial Court 30 January 2002


The dispute, in this case, is a result of the dismissal of FHL (the claimant) by P Mewah Sdn Bhd (the company).






Introduction


The company contends that:

  • The claimant was dismissed because of the claimant's absence for too long without a valid reason.


  • As a result, the claimant's performance has been badly affected; he could not complete his job function as a supervisor.


  • The claimant's inability to function has affected the company's production capacity.


The claimant contends that:

  • He doesn't know why the company dismissed him. He was never given any warning or show cause letter about his performance.

  • The termination letter didn't specify the reason.

  • The claimant was not given any opportunity to defend himself.

  • The company held no domestic inquiry to hear the claimant's story.

Facts Of Case/Evidence

The claimant joined the company on 17 April 1995 as a supervisor. The claimant was terminated effective on 31 August 1998.

The areas mentioned in the termination letter, the reason for dismissal fit for the assigned job responsibilities".


The company, however, gave three reasons for the dismissal, namely:

  1. absence from work

  2. company work cannot run smoothly and

  3. that the claimant had his own business.

However, in the company's pleadings, it was stated that the reason for the claimant's dismissal was that he was absent without leave. From the evidence, it is evident that absenteeism is the main reason for the dismissal.


The evidence before the court shows that the claimant was a monthly paid employee. If the claimant were absent without leave, he would not be paid for the day. If the claimant produced a medical certificate from a clinic not on the company's panel, he would not be paid for the day. The claimant is, however, paid for all Sundays, public holidays and medical certificates from clinics of company panels.


Claimant's Job Functions


  • The claimant's main job is to supervise the company workers and the company's production.

  • In addition to the above, the claimant would also be required to handle problems caused by Bangladeshi workers,

e.g., taking them to the hospital or the police station whenever a fight between them.

This extra job of handling Bangladeshi workers would sometimes involve odd hours of the day.



  • The claimant was also asked to entertain some Taiwanese businessmen. This would also entail odd hours of the day.

  • Doing these extra jobs, the claimant was paid separately by the company in the form of pocket money, which is not reflected in the salary voucher.


Procedures For Application For Leave

Company procedures stipulate that leave can be obtained by applying for leave.


For emergency cases, call and inform one of the three staff of the company, i.e., F, W and A.


However, the next day the applicant still has to fill up the leave form.


But for supervisors like the claimant, COW1 must still approve the leave. This was confirmed by Company 1st and 2nd Witnesses, i.e. COW1 and COW2.


Warning

The company contended that verbal warnings were given from time to time to the claimant by COW1 and other staff.


COW1 stated about 60 verbal warnings were given to the claimant to improve himself and not to be absent without leave.


The verbal warnings were given over two to three years.


The company produced one warning letter to the claimant, which the claimant did not sign. The claimant denied receiving this warning letter and that he didn't sign for it.


COW2 stated that the warning letter was prepared by one L. However, L has since left the company.


COW2 handed the warning letter to the claimant, but the claimant refused to sign it.


Show Cause Letter

It is not in dispute that no show-cause letter was given to the claimant before his dismissal.


The claimant further alleged that he was not allowed to explain his case.


The company contends that:

  • The shortcoming was pointed out to the claimant by COW1 and other company staff,


  • But the claimant failed to adhere to the verbal warnings.


Breach Of Natural Justice

The claimant testified that no misconduct charges were ever formed or sent to him before he was terminated. The company would again rely on the evidence of COW1 that the claimant was given sufficient verbal warnings to improve.


The Law

The issues here are:

  1. The claimant's absence without leave is the main reason for his dismissal by the company, whether the claimant had just cause for such absence.

  2. If proven he was absent without leave too many times, does that justify his dismissal?

  3. Was the claimant given sufficient warning before he was dismissed from his service?

Principles of Dismissal

The general principles relevant to dismissal cases were reiterated in Kama Morris Sdn Bhd v. Lee Chwee Say[1990] 1 MELR 499; [1990] 1 ILR 435 as follows:

It is a fundamental principle of industrial law that the court would be wrong to interfere with the bona fide exercise of powers which are given to the management by common law and by contacts of service or which are inherent in management. 
If there has been no abuse of discretion, no discrimination, no unfairness, no capricious or arbitrary action if the management has acted in good faith and upon fair investigation, an arbitrator should not disturb the decision taken by the employer.