Leave cannot be claimed as of Right; the Employer reserves the Discretion to Refuse or Revoke the Leave
M Company v. IBS
Industrial Court, Kuala Lumpur
[Case No: 4/4-334/94 (15 August 1994)]
27 September 1995
The Claimant contends that
he had been dismissed without just cause or excuse on 1 December 1993;
the company's failure to hold a Domestic Inquiry before dismissing him, and this was a gross violation of natural justice.
The Company contends that
the claimant's absence from work from 27 November 1993 to 1 December 1993, although he had alleged, he had important personal matters to attend to
the claimant's services as a lorry driver were terminated by himself for being absent from work for more than two days without informing or attempting to inform of the excuse before or at the earliest opportunity during such absence.
the claimant was not dismissed but had contravened s. 15 of the Employment Act and had terminated his own contract of employment as a lorry driver.
Reason of the Claimant for absence:
had to be in Jengka, Pahang, from 27 November to 1 December 1993 to attend to his school-going children's needs.
Leave Application Procedures
Before taking a leave of absence, any employee who is planning to do so is required to fill out an application for leave and acquire approval for their time off.
The leave needed to be reviewed and approved by the appropriate authorities before taking it.
The claimant was aware of the procedure as he had previously put in a proper application for leave.
Employment Act 1955
Section 15(2) of the Employment Act 1955 provides inter alia:
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 employment contract binds the employee, and as part of that contract, he is required to report to work each and every day unless he was authorised not to do so (on approved leave or rest day).
The Evaluation Of Evidence And Findings
The claimant, in his testimony, under cross-examination, admitted he did not contact the company anytime between 27 November 1993 to 1 December 1993.
1. On Domestic Inquiry
On the need to hold a domestic inquiry, the Court reminded itself on the decision of the highest Court that it is now not necessary to hold an inquiry before dismissing the employee.
For a breach under s. 15, the Court was of the view that there is no need for an inquiry.
2. On Dismissal Without Just Cause or Excuse
The Court holds that the claimant's reason for absence to attend to his domestic needs may be a reasonable excuse but finds that the claimant failed to inform or attempt to inform the company at the earliest opportunity before or during his absence.
The Court further finds as a fact the claimant had not applied for leave before his absence.
Employers can refuse or revoke leave at their discretion
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 or leave required is granted, the workman seeking leave cannot absent himself from work. Until and unless a workman's 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.
The Court found that the claimant had committed a fundamental breach of his employment contract by absenting himself from work for more than two days from November 27, 1993, without reasonable excuse and without proper leave.
The claimant's claim is dismissed.
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