Can an employer discipline or dismiss an employee for failing to respond to work communications after office hours?
Two recent Industrial Court awards suggest that Malaysian Courts are increasingly prepared to scrutinise after-hours work expectations, particularly where such expectations form the basis of allegations of poor performance or insubordination.
Lee Leng Men v Edgenta UEMS Sdn Bhd [Award No. 660 of 2026]
Brief Facts:
- The Claimant was a long-serving Finance Manager employed for approximately 26 years.
- The Company dismissed the Claimant for alleged insubordination, including failure to attend meetings, respond to emails and comply with instructions.
- Separately, the Company had also previously issued show cause letters and warnings arising from the Claimant’s alleged failure to respond to work communications after office hours. Many of the instructions and reminders relied upon by the Company had been sent outside ordinary working hours, including during weekends and late evenings.
- The Claimant contended that she had attended work as instructed, had continued working from home despite being unwell, and had overlooked certain meetings and emails due to excessive workload within an understaffed finance department where she was frequently required to work seven days a week, including on public holidays.
Court’s Findings:
Whilst the dismissal in this case was premised on allegations of insubordination, the Industrial Court made notable observations regarding the earlier disciplinary actions issued against the Claimant for allegedly failing to respond to after-hours work communications.
The Industrial Court observed that many of the instructions relied upon by the Company had been sent outside ordinary working hours, including during weekends and late evenings, without any genuine operational urgency. The alleged lapses arose from excessive workload within an understaffed department rather than deliberate defiance of instructions.
Importantly, the Court held that employees are not ordinarily expected to remain perpetually responsive to work-related communications outside working hours absent genuine necessity, notwithstanding that Malaysia has not yet statutorily recognised a “right to disconnect”.
Accordingly, the warning letter relating to the after-hours communication allegations was held to be unwarranted.
Fatin Hamamah Binti Jamaluddin v Comm-IT Consultancy Services Sdn Bhd [Award No. 428 of 2026]
Brief Facts:
- The Claimant was employed as a Project Manager in an IT company.
- The Company issued a show cause letter alleging poor performance, including an allegation that the Claimant was unwilling to respond or revert on urgent official matters after office hours.
- The Claimant denied the allegation and maintained that she had responded to work matters after office hours where necessary.
- The Company subsequently terminated the Claimant’s employment on grounds of poor performance.
Court’s Findings:
The Industrial Court found that the Company failed to establish that responding after office hours formed part of the Claimant’s duties.
Importantly, the Court expressly recognised that “employees are generally entitled to a reasonable boundary between work and personal time, consistent with the principle now widely recognised as the “right to disconnect.””
The Court further held that absent evidence that after-hours responsiveness formed part of the employee’s defined role, or the matters genuinely could not wait until office hours, the allegation of poor performance lacked foundation.
Accordingly, the Court held that the dismissal was without just cause or excuse.
Key Takeaways
These decisions suggest that the Industrial Court is increasingly prepared to scrutinise after-hours work expectations, particularly where such expectations form part of disciplinary allegations.
Whilst Malaysia does not presently recognise a statutory “right to disconnect”, the Industrial Court appears willing to consider whether after-hours instructions were genuinely necessary and whether alleged lapses were in fact caused by excessive workload or operational constraints rather than wilful misconduct.
Employers should therefore ensure that expectations regarding after-hours responsiveness are reasonable, operationally justified and clearly communicated. This is especially if an employer intends to dismiss an employee on these grounds.
***
This article was written by Ilyssa Jace (Associate) from Donovan & Ho’s employment law practice.
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.
