Day: June 10, 2022

Employee Absenteeism Vs Puzzle

To successfully run a business in the modern-day is analogous to putting together a mammoth puzzle.

A jigsaw puzzle in which the pieces, which represent your staff and the goals they have, are dispersed across the board. And the whole thing stays unfinished if even one of the pieces is absent from the puzzle.

Having said all of that, the problem of employee absenteeism in the workplace is the same here as anywhere else.

雇员旷工与拼图

在现代社会，要成功地经营企业，就好比是在拼一个巨大的拼图。

拼图中的碎片代表你的员工和他们的目标，分散在整个板块中。

如果其中哪怕有一块不在拼图上，整件事情就会一直未完成。

好了，说了这么多，工作场所的员工旷工问题在这里也没有什么不同。

Finding one or two empty seats at your company is an everyday occurrence if you are a member of the HR department or a manager.

In most cases, you will approve leave requests submitted by your staff to give them a good rest or time to attend to their personal matters. For example: opening a bank account, issuing passports, settling children into school, etc.

Or, the employees could take unpaid leave without giving any advance notice, which is permissible in specific situations that might differ from company to company depending on the nature of the conditions.

如果你是人力资源部门的成员或经理，在你的公司发现一两个空位是一件很平常的事。

在大多数情况下，你会批准员工提交的请假申请，让他们好好的休息或有时间处理一下自己的私人事务。比如：开银行户口，出护照、安顿小孩上学等等。

或者，员工可以在不提前通知的情况下休无薪假，这在特定情况下公司是会允许的，当然具体情况可能因公司而异。

General Principle 1: Absenteeism is a misconduct

Absence from work without permission is an act of misconduct.

Section 15(2) of the Employment Act 1955 (“the EA”) (section 13A of the Labour Ordinance [Sabah Cap. 67] or section 14A of the Labour Ordinance [Sarawak Cap. 76]) states that:

an employee is considered to have breached his contract of service with the employer if he has been continuously absent from work for more than two consecutive working days without prior leave from his employer unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of the reason for his absence.

一般原则 1：旷工是一种不端行为

未经允许而旷工是一种不当行为。

《1955年劳工法令》（”EA”）第15（2）条 [《劳工条例》[沙巴州第67章] 第13A条或《劳工条例》[砂拉越州第76章] 第14A条）规定：

如果雇员在没有事先向雇主请假的情况下连续缺勤超过两个工作日，则被视为违反了与雇主的雇佣合约，除非他有合理的理由，并已告知或试图告知雇主其缺勤的原因。

Whenever an employee is absent from work without permission and has no reasonable cause, disciplinary action should be initiated against that employee.

When an employee is absent for one or two days, the employer should, via a show-cause letter, demand the employee to explain the absence.

It is necessary to send a warning letter to him if he cannot provide a valid explanation for the absence.

If the employee continues his pattern of being absent from work without approval for a second time, the employer may send a second warning letter to the employee.

Any additional instances of similar behaviour should result in a severe consequence, such as being placed on temporary suspension without pay, being demoted, or even being dismissed from their position.

The reasons that employees give for their absences are incredibly diverse and numerous. When an employee is absent from work without approval, employers should give them the chance to explain why they were absent and listen to their explanations. In the instances in which his justification is not acceptable, then only disciplinary action is taken.

每当员工未经允许而又没有合理的理由而缺勤时，就应该对该员工采取纪律处分。

当雇员缺勤一或两天时，雇主应通过一封要求解释信，要求雇员解释缺勤情况。

如果他不能提供有效的缺勤解释，就有必要向他发出警告信。

如果该雇员第二次继续其未经批准而缺勤的行为，雇主可以向该雇员发出第二封警告信。

任何类似行为如果持续下去，都应导致严重的纪律后果，如被暂时停职停薪，被降职，甚至被解雇。

The Law provides that either party to a contract of service may terminate such contract of service without notice in the event of any wilful breach by the other party of a condition of the contract of service.

For more information, please see Section 12(2) of the Sabah Labour Ordinance, Section 13(2) of the Sarawak Labour Ordinance, and Section 13(2) of the Employment Act.

劳工法规定，如果签订雇佣合约的任何一方故意违反雇佣合约的某项条款，则可被视为终止该雇佣合约，且无需通知。

更多信息，请参见沙巴劳工条例第12(2)条，砂拉越劳工条例第13(2)条，以及 1955 年劳工法令第13(2)条。

General Principle 2: Employees do not have the right to go on leave without the approval and consent of their employers

In the case Crowne Plaza Riverside Kuching v. Mohamad Zulkarnaen Suhaili [2000] 2 ILR 148 (Award No. 354 of 2000), the employee was terminated because he failed to provide a valid explanation for his absence from work and was thus dismissed.

This is what the Industrial Court had to say:

“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.”

一般原则 2：雇员无权在未经雇主批准和同意的情况下休假

在 Crowne Plaza Riverside Kuching v. Mohamad Zulkarnaen Suhaili [2000] 2 ILR 148（2000年第354号裁决）一案中，该雇员因未能提供有效的缺勤解释而被解雇。

工业法庭如此解释：

"如果工人在没有合理理由的情况下缺勤，或者在有合理理由的情况下，没有在缺勤前或在缺勤期间尽早通知或试图通知其雇主，则为不当行为"。

General Principle 3: Exception to General Principle No 2

The employer, on the other hand, is not allowed to dismiss an employee if that individual has informed or sought to inform his employer and if the employee has a valid reason for being absent from work.

In “Wan Ahmad Firdaus Bin Wan Rossman v Hong Leong Bank Berhad” [Industrial Court Case No: 15/4-88/18], the Company decided to terminate its employment because the employee had been absent from work for four consecutive days.

Because the employee’s position required him to perform his duties away from the office, the Industrial Court ultimately decided in his favour when the matter was heard there.

The employee’s job description required him to interact with customers, and he did so in the capacity of a sales executive.

As a result, when it came to a circumstance like this one, the court took the employee’s side and agreed that he was dismissed for being absent from the office unjustly.

一般原则 3：一般原则 2 的例外情况

另一方面，如果该雇员已经通知或试图通知其雇主，并且有有效的缺勤理由，在这种情形下，雇主是不被允许解雇该雇员的。

在 “Wan Ahmad Firdaus Bin Wan Rossman v Hong Leong Bank Berhad” [工业法庭案件编号：15/4-88/18] 中，公司决定终止其雇佣关系，因为该雇员已经连续四天缺勤。

由于该雇员的职位要求他在办公室以外的地方履行职责，工业法庭在审理此案时最终作出了有利于他的裁决。

该雇员的工作描述要求销售主管身份的他，需要在外与客户互动、交流。

因此，当涉及到像这样的情况时，工业法庭支持该雇员的观点，并同意他的解雇是不当的。

General Principle 4: In relation to leaves

According to the decision that was made in the case Norsechem Latex Products Sdn Bhd v. Nalang Kani Suppiah [1993] 2 ILR 392, an employee cannot claim a leave from work, such as annual leave, as a right and the employer always has the right to decide whether or not the employee will receive the leave.

In the case of Sandran a/l Perumal v. Nestle Manufacturing (M) Sdn Bhd [2014] 2 ILJ 356, the Industrial Court came to the conclusion that an employee is not permitted to take leave until and unless they get special approval to do so from their employer.

一般原则 4：与休假有关

根据 Norsechem Latex Products Sdn Bhd v. Nalang Kani Suppiah [1993] 2 ILR 392 一案的裁决，雇员不能将年假等工作假期作为一项权利来要求，雇主始终有权利决定雇员是否获得假期。

而在 Sandran a/l Perumal v. Nestle Manufacturing (M) Sdn Bhd [2014] 2 ILJ 356 一案中，工业法庭得出的结论是，在得到雇主的特别批准之前，雇员是不允许请假的。

Can an employee be dismissed for absence without leave?

An employee who has been absent from work for more than two consecutive days may be grounds for disciplinary action under the terms of the Employment Act or the Labour Ordinances since it is presumed that he has violated the terms of his employment contract.

This indicates that after the third day that an employee has been away without leave, an attempt should be made to find out why he has not reported for duty.

This should be done regardless of whether or not the individual has requested leave.

If the employee’s whereabouts and the cause for their absence are unknown, a show-cause letter should be issued to the employee’s residence demanding him to explain their absence. It would be reasonable to set a short deadline.

The letter may indicate that if he does not react, the Company will presume that he is no longer interested in his position, and his employment contract will end on the specified date if he does not respond.

There is no legal precedent for the concept of “self-termination” in Malaysian labour law, so the letter to the employee should not imply that the employee has such an idea. However, given that the employee has violated the terms of his employment contract, the employer is within his or her rights to terminate the agreement.

It is imperative to have clear policies and procedures regarding leaves of absence to reduce the distress caused by employee absenteeism.

The approval of an employee’s request to take emergency leave should be issued carefully, and only when the employee can offer proof of the emergency, they are experiencing.

雇员可以因旷工而被解雇吗？

根据《劳工法令》或《劳动条例》的规定，雇员如果连续旷工超过两天，就有可能受到纪律处分，因为可以推定他违反了雇佣合约的规定。

这表明，在雇员旷工的第三天后，雇主应设法查明他未报到的原因。

无论该员工是否有申请休假，都应该这样做。

如果雇员的下落和缺勤原因不明，雇主应向雇员的住所发出一封要求解释信，要求他解释缺勤原因。给予一个期限是合理的。

信中可以表明，如果他不作出反应，公司将推定他对自己的职位不再感兴趣，而他的雇佣合约将在指定日期结束。

在马来西亚的劳工法中，”自我终止合约 “的概念并没有法律先例，所以给员工的信不应该暗示员工有这种想法。然而，鉴于该员工已经违反了其雇佣合同的条款，雇主有权利终止协议。

当务之急是制定明确的请假政策和程序，以减少因员工旷工而产生的困扰。

在批准员工的紧急休假请求时，应谨慎签发，只有在员工能够提供证据证明他们确实经历了紧急情况时，才可以批准。

Mohd Muhayadin b. Rani and RM Otomobil Sdn Bhd, Award No. 1518 of 2011

The employee was transferred from Trengganu to Kuala Lumpur, but he insisted that he would not accept the transfer.

As a direct consequence of this, his employer wrote to him and granted him additional time to fulfil the requirements of the order of transfer.

On the reporting day, he did not report to work.

As a result, the employer sent him a letter three days after the date on which he was supposed to report informing him that as a result of his absence from work, it was deemed that he had terminated his employment contract.

The Court noted that the employee’s terms and conditions of employment did not include an express clause giving the right to the employer to transfer him.

Nevertheless, the Court pointed out that transfer is a managerial prerogative, i.e. an employer has an implied right to transfer an employee.

If the employee believes the transfer order is not legitimate for some reason, he ought to report for duty at the new place of work and then make known his dissatisfaction with the transfer order through the appropriate channels.

The Court said, "It is, therefore, the Claimant's duty in the instant case to first obey the transfer order and then challenge the alleged mala fide of the transfer order in separate proceedings." 

A number of cases were cited to support this principle.

The Court summarized the position: "The Claimant's consent is not required to exercise that prerogative (transfer). In the circumstances, if the Claimant still refuses to report for work at the place he is transferred to, i.e. Kuala Lumpur head office then he is deemed to have absented himself without leave of the Company and therefore his conduct does amount to major misconduct and a breach of Section 15(2) of the Employment Act 1955."

The Industrial Court upheld the dismissal of the employee.

Mohd Muhayadin b. Rani and RM Otomobil Sdn Bhd, Award No. 1518 of 2011

该雇员被从登嘉楼调到吉隆坡，但是他坚持说他不会接受调派。

最终的后果是，他的雇主写信给他，给予他额外的时间来准备被调派的要求。

在报到日当天，他没有报到。

结果，雇主在他应该报到的日期三天后给他发了一封信，通知他由于他没有上班，所以推定他已经终止了他的雇佣合约。

工业法庭了解到，该雇员的就业条款和条件并不包括赋予雇主调动他的权利的明确条款。

然而，工业法庭指出，调派是管理层的一项特权，也就是说，雇主有默示的权利来调换雇员。

如果雇员认为调派令因某种原因而不合法，他首先应该到新的工作地点报到，然后再通过适当的渠道表明他对调职令的不满。

工业法庭说："因此，在本案中，索赔人有责任首先遵守调派令，然后在单独的诉讼程序中质疑调派令存有恶意的目的"。

工业法庭进而引用了一些案例来支持这一原则。

工业法庭总结了这一立场。"公司管理层行使该特权（调职）不需要征得申诉人（员工）的同意。在这种情况下，如果索赔人仍然拒绝到他被调派的地方，即吉隆坡总部报到，那么在报到日当天，他就被认为是未经公司许可而旷工，因此他的行为确实构成了重大不当行为，违反了《1955年劳工法了》第15（2）条"。

General Principle 5: Condonation

If an employer believes that an employee’s absenteeism is unacceptable, the employer should address it promptly to avoid possible adverse consequences that absenteeism has been condoned, accepted or excused by the employer because it will result in the employer not being able to later use the employee’s absence or tardiness as a reason for termination.

It is possible that the employer may be perceived to condone or accept such behaviour, which will result in the employer being unable to use the employee’s absence or tardiness as grounds for dismissing an employee at a later date.

The employee in the case of Zulkefly Ibrahim v. Airport Limo (M) Sdn Bhd [2008] 2 LNS 0299 was absent from work from 25 September to 8 November 2001.

However, the employer continued to employ him until 26 November 2001.

The Industrial Court determined that the employer had condoned the employee’s alleged wrongdoing and that the employer cannot, as a result, now use it to justify the employee’s dismissal because the employer had previously condoned it.

一般原则5：纵容

如果雇主认为员工的旷工行为是不可接受的，雇主应该迅速处理，以避免可能出现的不良后果，即旷工行为已被雇主纵容、接受或原谅，因为这将导致雇主日后不能以雇员的缺勤或迟到作为解雇的理由。

在 Zulkefly Ibrahim v. Airport Limo (M) Sdn Bhd [2008] 2 LNS 0299 一案中，该雇员在2001年9月25日至11月8日旷工。

然而，直到2001年11月26日，雇主依然继续雇用着他。

工业法庭裁定，雇主在从容该雇员所被指控的错误行为，因此，雇主现在不能用它来作为解雇该雇员的理由，因为雇主之前已经宽恕了它。

Conclusion

If an employee is found to be absent from work, the employer should immediately take disciplinary action through a verbal warning, Warning Letter, Show Cause Letter, or disciplinary actions that include demotion or dismissal, rather than ignoring or condoning such behavior until it becomes unbearable.

总结

若发现雇员旷工，雇主应该立即通过口头警告、警告信、要求解释信或包括降级或解雇的惩戒，而非忽视或纵容他们的这种行为直到忍无可忍之际。

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1. 产假增加至98天

2. 爸爸陪产假7天

3. 计算不完整月份工资

4. 如雇主无法支付工资，雇主必须变卖资产缴付工资

5. 其他更新

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讲座会详情

📌日期 : 25-26/6/2022 (六&日)

📌地点 : Online (Zoom)

📌时间 : 9.30am – 5.30pm

📌学费（HRDF Claimable) ：

课程内容:

Day 1 – 25th June 2022

1. Application of the Employment Act 1955 (EA1955) vs Sabah Ordinance vs Sabah

2. Contract of Service

3. Administration of wages

• Definition of Wages
• Ordinary Rate of Pay
• Payment and Wages
• Lawful Deductions
• Overtime Calculation
• Unpaid Leave Calculation
• Incomplete Month Wages Calculation
• Advances

4. Maternity Protection

• Maternity Leave
• Maternity Allowance
• Maternity Rights

5. Hours of Work

6. Rest Day

7. Public Holidays

8. Annual Leave

9. Sick Leave

10. Part-Time Employees

Bonus Topic

11. Updates on newly gazetted Employment (Amendment) Act

Day 2 – 26th June 2022

1. Minor Misconduct vs Major Misconduct

2. Termination procedures on misconduct

3. Types of Termination

• Dismissal
• Resignation
• Retrenchment
• Mutual Separation Scheme
• Voluntarily Separation Scheme
• Retirement
• Non-Confirmation
• Termination for Poor Performance
• Constructive Dismissal
• Frustration of Contract
• Deemed to have broken the Contract

4. Disciplinary Process

5. Probationary Rights and Obligations

6. Code of Conduct for Industrial Harmony

7. Retrenchment Procedures

8. Retrenchment benefits / Termination benefits

9. Compliance with Form PK

10. Implication of incorrect termination and retrenchment procedures.

Important Note:

1. The Seminar will be conducted via Zoom. The replay session will be posted on FB Private Group. We will add you to a WhatsApp Group and all information will be posted on the WhatsApp Group.
2. Please insert your company as Participant if you want the invoice to issue under your company’s name.
3. Please remember to download your invoice upon payment made.
4. The Course fee is non-refundable.
5. Please WhatsApp to +60 11-1229 0453 if you need further clarification.