In the wake of the global pandemic, workplaces faced unprecedented disruptions. One such challenge was managing emergency leave due to the pandemic due to lockdowns, restrictions in movements, and the rise of remote working. However, the pandemic itself should not serve as a blanket excuse for avoiding responsibilities or disregarding company policies.
The case of THY v Dahtec Marketing Sdn Bhd [Award 2013 of 2023] examined the situation where an employee used the pandemic repeatedly as a reason for his emergency leave.
Brief Facts
- The Employee was dismissed for repeatedly taking emergency leave without proper approval and failing to provide supporting documents.
- The Employee took emergency leave three times without submitting a formal leave application, in breach of the Company’s rules. The Employee argued that his actions were necessitated by the COVID-19 pandemic and the need to care for his unvaccinated child at home.
- The Company issued a show cause letter in response to the Employee’s misconduct. The Employee failed to respond to the show cause letter and instead submitted leave applications for two of the three occasions. The application was rejected because there were no attached documents to support the application.
- The Employee was given a warning letter and warn not to repeat the mistake again.
- After the warning letter, the Employee again applied for emergency leave, and submitted his application with no supporting documents.
- The Employee was dismissed for misconduct, and sued the Company for unfair dismissal.
Court’s Findings
The Industrial Court found that the Employee was dismissed with just cause or excuse:
- The Employee had failed to justify his absence or support his leave application with adequate documentation.
- Despite warnings and opportunities given by the Company, the Employee persisted in his misconduct, which disrupted the Company’s operations.
- Leave approvals are a must in any working environment and this is to minimise disruption to the Company’s operations.
- The Company was not unwilling to approve the leave application. However, the Employee must show he had good grounds to be absent without notice.
Key Takeaways
Emergency leave is meant for genuine situations where advance notice is impossible, but it should never be exploited or misused. It cannot be presumed that all emergency leave applications will be approved as of right. Misuse of emergency leave may amount to misconduct, since it will be an unauthorised absence without good reason.
While personal emergencies are understood, employees must balance their personal needs with their responsibilities. Employers may consider individual circumstances, but employees are expected to communicate effectively and responsibly.
Here, the Court pointed out that the Employee’s indifferent attitude in solving the problem as ‘nonchalant and a couldn’t be bothered’ attitude. He had, for example, responded to the Company’s queries by saying “not my problem, the Covid problem”, instead of addressing the Company’s concerns.
The Employee’s explanation that the pandemic forced him to take care of his 12 year old child, was not acceptable to the Court, since the Employee would not have been the only employee in the same situation. Yet, other employees had no issues attending to their jobs during the pandemic:
‘If every employee takes the position that they will not come to work because of these types of excuses despite lawful request of the Company, the Company’s operation and the industry as a whole would come to a grinding halt…Assuming…countless people in the workforce had taken the same position like the Employee, what could possibly happen to this country?’
The pandemic, albeit a genuine concern, cannot be simply used to avoid responsibilities. Managing emergency leave during these times is a delicate balance, requiring understanding and empathy from both employers and employees. The Court’s decision serves as a reminder that even in extraordinary times, the fundamental principles of accountability and cooperation between employers and employees must prevail to ensure the smooth operation of businesses and industrial harmony.
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This article was written by Bryant Tan Wei Lun (Intern), edited by Donovan Cheah (Partner) from Donovan & Ho’s employment law practice. Donovan has been named as a recommended lawyer for labour and employment by the Legal 500 Asia Pacific for 2017-2022, and he has also been recognised by Chambers Asia Pacific and Asialaw Profiles for his employment law and industrial relations work.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation. Have a question? Please contact us.
