“Charles, where’s Mia? I haven’t seen her in Office today?”
“Oh she’s MIA”

Being absent and on leave from work may seem like a minor issue, however absconding from
work would disrupt the harmony of a Company. Hence as employers and employees of the Company, it is important for us to know how abscondment amounts to misconduct.

In Crowne Plaza Riverside Kuching v. Mohamad Zulkarnaen Suhaili [2000] 2 ILR 148 (Award No. 354 of 2000), “an absent workman misconducts himself if he is either absent from work without reasonable excuse or, if he has a reasonable excuse, fails to inform or attempt to inform his employer of such excuse prior to or at the earliest opportunity during his absence.”

This was agreed in Pan Global Textiles Berhad Pulau Pinang v Ang Beng Teik [2002] 1 CLJ 181 which the Courts viewed “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.”

Additionally, in G Kumareshen a/l Gopal v. Remunis Sdn. Bhd. [2015] 1 ILJ, the Courts held that “…The claimant conceded in his testimony that he was obliged to obtain leave before absenting himself from work. His failure to apply for leave was a gross violation of discipline;
his continued absence from work without proper approval and non-confirmation of the leave procedure constituted misconduct…”
In Thawendran Wendran v. Malaysia Airline System Berhad [2014] 2 ILR, the Court held that “Absenteeism may appear to be a minor misconduct but when it is prolonged and employers
are not notified of the ‘emergency’ leave that has not been applied for or the explained leave afterwards of employees as in the case of the claimant, it can subsequently become a very serious problem. The result is that employers will be left in a lurch having to find other staff to cover the absent employees’ work and naturally, will cause disharmony in the work place.”

But is it still abscondment if it is not continuous?
In Esso Malaysia BHD. v. Subramaniam Muthu [1998] 3 ILR, the Claimant was dismissed as he had left his post during the relevant time where Courts believed that “A security guard, who leaves a place he has assigned to guard for an unreasonable length of time, especially a place which was clearly a danger to anyone who approached it, can only be betraying the full sense of his responsibility. The claimant had committed a serious breach of his duties as to amount to gross misconduct which justified his dismissal.”
Similarly in Ong Wei Wah v. Berjaya Times Square Theme Park Sdn Bhd [2014] 4 ILR, the Company had terminated the Claimant due to his continuous ‘missing in action’ (MIA). Courts viewed that “Although he was ‘missing in action’, it was not for long hours as the evidence has shown.” And “The company had not shown that the claimant had any record of disciplinary action or warnings had been given so the court would consider he had a clean record. It is the court’s opinion that the punishment of dismissal was not proportionate to themisconduct the claimant had committed.”

In Mohd Fazwan Rashid v. Unisteel Technology (M) Sdn Bhd [2022] 2 LNS 1981 the Company upon the absence of the Claimant had taken a further step of enquiring his whereabouts with a show cause letter, showing effort to contact the Claimant.

It is important to note that employers still are duty bound to enquire the reasons of the employee’s absence and to dismiss an employee prematurely and without allowing adequate time for an employee to justify its absence may lead to the dismissal being held as without just cause and excuse.

Premjit Singh is the Managing Partner of Prem & Associates (www.premlaw.com) and he can be contacted via email at prem@premlaw.com or mobile at 012-5236755.
Article written by Lee Minli.

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