Worker argues emergency notifications justify absences but employer disputes validity
The Industrial Court of Malaysia recently dealt with a case involving the dismissal of a worker over allegations of chronic absenteeism and tardiness.
The worker had been employed since May 2016 but was terminated in March 2023 following a pattern of attendance issues that the employer claimed severely impacted business operations.
The worker argued that he had properly notified his employer about his absences through WhatsApp messages and that his reasons for being late or absent were legitimate emergencies involving family illnesses, car problems, and other personal circumstances.
He also argued that the employer had failed to follow proper procedures before dismissing him, including not conducting a domestic inquiry or issuing a show cause letter.
The employer, a transport and freight forwarding company, first addressed the worker's attendance through official channels in December 2022, issuing a warning letter that specifically cited his tardiness.
The company made salary deductions for lateness exceeding one hour, emphasising that punctuality was essential in logistics operations where customs clearance delays could trigger significant penalties.
The HR manager presented detailed evidence of the worker's attendance patterns during the problematic months. In October 2022, the worker was absent for two days without notice and late for work on 24 days.
November 2022 saw seven unauthorised absences and 19 late arrivals, whilst December recorded 11 days of absence and 14 days of tardiness. The punch card records also revealed that the worker consistently failed to record his departure times.
The worker's employment contract contained specific attendance requirements under Clause 11: "You are expected to report for work punctually and regularly. On commencing and completing work for the day, you are required to punch your time cards, or sign the attendance register. You are not permitted to punch for, or sign on behalf of another employee under any circumstances."
The HR manager testified that despite constant counselling and reminders about punctuality, the worker's attendance showed no improvement.
Following the December 2022 warning letter, the worker's attendance worsened rather than improved. January 2023 recorded 18 days of unauthorised absence and five days of lateness, with the worker also taking two days of medical leave.
The HR manager testified that he had to deduct 11 days from the worker's annual leave allocation to ensure the worker received his regular salary despite the extensive unauthorised absences.
February 2023 showed 14 days of unauthorised absence, seven days of lateness, and two days of medical leave. March 2023, leading up to the worker's dismissal on 7 March, recorded four days of unauthorised absence and two days of medical leave.
The HR manager testified that the worker "not only failed to show any improvement, but that his lateness and absenteeism actually worsened despite constant and frequent counselling and reminders."
The court examined the punch card evidence systematically, finding the HR manager's testimony about the worker's attendance patterns to be consistent and credible.
The records showed that the worker typically arrived around 10.00am instead of the required 9.00am start time, representing approximately one hour of lateness on most working days.
The worker defended his attendance record by producing WhatsApp screenshots showing communications with company directors and managers about his absences and lateness.
He argued that he had informed the employer about emergency situations including car problems, family illnesses, police matters, and medical issues sent to various company personnel including a director and managers within the organisation.
However, the court found significant problems with this defence. The WhatsApp conversations were either dated in 2021 or occurred after the December 2022 warning letter was issued.
Crucially, the messages didn't correspond to the actual dates when the worker was absent or late during October, November, and December 2022.
The court examined the worker's excuses for specific dates in early 2023, which included emergency leave for car insurance claims, motorcycle tyre punctures, flooding, family members being unwell, and what he described as "private and confidential matters."
The court distinguished between notification and proper approval procedures, stating: "merely informing [the employer] of his absenteeism and lateness in WhatsApp is insufficient, unless such a mode of communication is expressly permitted by [the employer] as a valid means of obtaining approval."
The court emphasised that even with modern communication tools, such notifications do not constitute obtaining proper permission unless specifically permitted by company policy.
The HR manager explained the employer's established leave procedures during his testimony. For standard leave applications, workers must complete a form three days in advance, obtain supervisor approval through signature, and submit the form to HR for filing.
For emergency situations, the manager testified that workers must "still inform and obtain the approval from his supervisor before taking the emergency leave."
Upon return from emergency leave, employees must complete a leave application form with supervisor approval and "provide proof that there was an actual emergency necessitating emergency leave to be annexed with the leave application form."
The manager emphasised that "when employee failed to comply with the procedures for taking annual leave and emergency leave, he would be considered as absent without any reason."
The court found that the worker had not submitted proper leave application forms for his numerous absences, particularly those he claimed were emergency leave. The court noted that under Malaysian employment law, workers must obtain proper permission for any time off work.
Simply informing managers through WhatsApp messages does not count as getting approval unless the company specifically allows this method.
The Industrial Court in this case (Case No. 15/4-1584/23) ruled that the employer had demonstrated just cause for dismissal based on the worker's attendance record.
The court applied standard workplace rules when making this decision, looking at whether the employer had enough evidence to justify the termination.
The court found the worker guilty of serious workplace misconduct, stating that he had committed "excessive and unreasonable absenteeism and habitual lateness, most of which were without valid justification and largely attributable to personal reasons."
The court noted that such behaviour constituted "a serious breach of the fundamental duties expected of an employee and reflects a wilful and deliberate disregard for [the employer's] rules, policies, and operational requirements."
The court concluded by applying section 20(3) of the Industrial Relations Act 1967, stating: "Having considered the totality of the evidence and going by equity, good conscience and the substantial merits of the case without regard to technicalities and legal form, the Court finds that [the worker] was dismissed for just cause or excuse."
The worker's claims were dismissed, upholding the employer's decision to terminate his employment.
