Employees Habitual Absence from Work? How do Employers Deal with It ?


     By Jayadeep Hari & Jamil

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Absenteeism is a common vocabulary faced by almost all employers. Continued absenteeism can be damaging to an organisation, as there is potential loss of efficiency and effectiveness as well as a fall in customer service and not to forget a strain on the absent employee’s co-workers. Absenteeism not only impacts on production levels; it impacts on other staff.

When employees absent themselves from the workplace, someone else invariably has to take up the slack when things don’t get done or completed and someone else becomes accountable. Colleagues can have legitimate feelings of resentment and if the absenteeism is ongoing, sustained resentment towards the employer.

Employers have an obligation to all their employees to manage the workplace in a fair and reasonable manner. Absenteeism has financial implications beyond production levels and staff morale. While an employee is not at work, the benefits of their employment continue.

Habitual absenteeism (of less than two days at a time but on a frequent basis) would be defined as unauthorized absence from work on a certain number of days per month over a 6 month period. Initially warnings would be given, but if the absence persists, the employee may face dismissal. The failure to be punctual would be treated the same way as habitual absenteeism.

Those who take medical leave beyond the number of days authorized may be initially warned. If the malady persists, then they may be sent for a full medical examination to determine the cause of such constant sickness. If the examination gives a clean bill of health the employee would be given a chance to improve or face dismissal.



General Absence from Work

In Malaysia the law is very clear in acknowledging the right of an employer to dismiss an employee for being absent from work without just cause and excuse.

The Federal Court in Pan Global Textiles Bhd Pulau Pinang v Ang Beng Teik [2002] 1 CLJ 181 held:

“No employee can claim as a matter of right leave of absence without permission and when there might not be any permission for the same. Remaining absent without any permission is gross violation of discipline. Hence, continued absence from work without permission will constitute misconduct justifying the discharge of a workman from service”

Section 15(2) of the Employment Act 1955 provides that:

“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 days without prior leave from his employer, unless he has 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”

However reported cases show that a breach of contract and termination are dealt as separate issues. As such a breach of contract may not lead to an automatic termination of employment. The consequence of such a breach would depend on the conditions of employment.

In Sistem Penerbangan Malaysia Bhd. V. Zubaidah Bte Ibrahim [1994] 2 ILR 738, Zubaidah gave birth to a child that was brain injured. This coupled with her own medical problems led her to take no-pay leave. She obtained a year's no-pay leave, which was subsequently extended, to accompany her handicapped child for treatment abroad. She was stranded in London, and she dutifully informed her employer of the status quo.

Upon arrival in Kuala Lumpur, her leave was extended till 10 August 1989, and she had to officially apply for it after reporting for duty by filling the necessary application forms.

However, the events leading to her termination came to a crescendo when the husband, wrote to the employer on 11th August 1989 informing that Zubaidah would only be returning to work after she had sufficiently recovered from the "marathon ordeal". This eventually led to her dismissal after a show cause letter, when the management informed her that she had terminated her own services and directed her to pay 14 days' wages in lieu of notice. Her subsequent appeal to the Company's Board of Directors was rejected.

It was decided that the Zubaidah did not breach her contract under Section 15(2) to warrant dismissal since she had reasonable excuse and that her husband prior to her extended absence informed the employers of it.

Absence on Medical Grounds

Under the Employment Act 1955, section 60(F)

(2) An employee who absents himself on sick leave -

(a) which is not certified by a registered medical practitioner or a medical officer ... ; or

(b) which is certified by such registered medical practitioner or medical officer or a dental surgeon, but without informing or attempting to inform his employer of such sick leave within forty-eight hours of the commencement thereof, shall be deemed to absent himself from work without the permission of his employer and without reasonable excuse for the days on which he is so absent from work.

Therefore, an employee who absents himself on medical leave is statutorily required to inform his employer of such sick leave within 48 hours of the commencement of the said leave and his failure to so inform his employer shall be deemed to be absence from work without reasonable excuse.

In Malaysia Airlines System Bhd v Julais Stephen [2005] 3 ILR 34, the claimant was dismissed by the company on the allegation that he had absented himself from work on two occasions, i.e. on 3-4 April 1999 (“the first occasion”) and from 6-8 April 1999 (“the second occasion”) without obtaining prior permission.

The claimant’s justification, in relation to the first occasion, was that he had to rush back to Sabah to attend to his mother who was ill and that he had been ill on the second occasion.

The court held that based on the evidence on the claimants demeanour and from the evidence itself, it was proven that the claimant never obtained prior permission from the company for his absence from work/duty on the first occasion or, notified or genuinely attempted to notify the company promptly of the reason for his absence.

The Company’s irrefutable evidence was that, in the event of an employee of the company becoming sick, the employee (or if he is too sick, someone else on his behalf) is required to inform his superior or departmental head immediately or at the earliest opportunity. Even if the employee obtains a medical leave from a doctor but does not inform the company thereafter, the employee would be considered as absent without reasonable excuse. Here, although the claimant knew of the aforesaid requirement he nevertheless failed to take concrete steps to notify the company of his absence on the second occasion.

By virtue of section 60F(2) of the Employment Act 1955 the claimant was deemed to have absented himself from work without the permission of his employer and without reasonable excuse for the days on which he was absent from work

The Company had already given the claimant several opportunities to redeem himself and to change his conduct of absenteeism, but when the claimant committed the acts of misconduct of being absent from work on the first and second occasion repeatedly without permission and/or notification, which breached Sections 15(2) and 60F(2) of the Employment Act 1955, there was no alternative but to dismiss the claimant.

Conclusion  

It is advisable for employers to have systems in place to measure and analyse these costs so that they can identify problem areas. Are there patterns of absence? Does a particular department have a below average record?

Unhappy, demoralised employees are more likely to take time off work. Workplace stress is still the most common cause of long-term sickness among non-manual workers. Creating a friendly workplace environment, where staff feel valued as part of a team and where flexible, ‘family friendly’ policies are in force is likely to pay dividends, keeping absenteeism to a minimum.
 
To manage absence effectively, the staff should be well informed of the employer’s your sickness policy and procedures. Procedures must be followed and accurate records kept.
 
When hiring new staff, employers should do background check on the candidates attendance record with the previous employer. If new staff’s are often absent, it is good practice as an employer to be aware and take an interest in knowing as to whether there are problems preventing the staff from settling in. How staff is treated in the first weeks of a new job is vital.
 
It is sensible for employers to ensure that contracts of employment allow them the right to get an independent medical assessment in the event of an employee taking more than a few days for medical leave. Employers may consider requiring all potential employees to undergo a medical examination with an occupational health adviser.
 
Companies may want to consider carrying out a ‘return to work’ interview. This may range from ‘hope you’re better, we missed your contribution’ message to the employee to an identification of underlying problems that will affect your management strategy. It may also deter malingerers (time wasters).

Long-term sickness must be handled sensitively. Employers must have an employee’s permission to apply for a medical report. It is vital to keep in touch with them in their absence so that the employee doesn’t feel isolated. Consider referring them to an occupational health specialist. This can identify ways of helping them return to work and give you information as to how long the absence is likely to last.

Experts have suggested that employers do the following to better equip them in dealing with absenteeism:

- Creation of An Employee Handbook

Employers could maintain an Employee Handbook that stipulates clearly the company’s employment policies. The Employee Handbooks should cover topics as the types of leaves and procedure for applying and giving notification for leave, the company’s policy on attendance, and disciplinary actions that may be taken for the failure to comply with these policies. Every employee is required to acknowledge these policies so as to facilitate the employer when the time comes for him to take action against an errant employee.

- Keep a proper record of every employee

Proper records would greatly assist the Company in handling any subsequent conduct pertaining to the said employee including the issuance of warning letters, the holding of domestic inquiry etc.

- Providing counseling to said employee

The counseling session should be recorded in writing. The said employee should acknowledge the date, time and a summary of the discussion.

- Issuing warning letters to habitual absentees

The Employer should inform the employee that more severe disciplinary action would be taken for repeated offense.

ABOUT THE AUTHOR: Aravindhran Balan
The author is the Knowledge Manager for Messrs Jayadeep Hari & Jamil. He has over 8 years experience in the field of legal research both in the public and private sector. He also worked as an Administrative & Diplomatic Officer for the Malaysian Government for three years drafting policies on aviation for the Ministry of Transport Malaysia with over 30 policy papers to his credit.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.



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