In the case of a “Fundamental Breach,” there is no need for an Inquiry

Share the Post:

Harapan R Sdn. Bhd. vs. RY
Jabatan Perhubungan Perusahaan
7 October 1997

The parties to the dispute are Harapan R Sdn. Bhd. (hereinafter referred to as ‘the company’) and Encik RY (hereinafter referred to as ‘the claimant‘).

The dispute is over the claimant’s dismissal by the company on 5 April 1994.

The claimant contends that the dismissal was without just cause or excuse and prays for reinstatement to his former position without loss of benefits.

争议双方是 Harapan R Sdn. Bhd.(以下简称’公司‘)和 Encik RY(以下简称’申诉人‘)。



The Company

The company has adduced evidence before the Court to show that the claimant was absent from work without leave being approved on three separate occasions.

On each occasion, the claimant proceeded to go on leave despite being told his application for leave had not been approved.

The company had treated his absence from work as absence without leave, and on each occasion, it issued a warning letter to the claimant.

The authority for approving leave applications was the executive director A, after the recommendation of supervisor B (the claimant’s immediate superior).

First Absence Without Leave

The claimant’s application for a leave commencing 14 November 1993 to 18 November 1993 had been sent to executive director A directly for approval. After discussing with supervisor B, and due to the exigency of service, he disapproved the application.

The claimant was duly informed by supervisor, B but he did not turn up for work from 14 November to 18 November 1993.

When the claimant was issued a show cause letter, he refused to acknowledge receipt.

Executive director A subsequently called the claimant to his office for an explanation, and the claimant did not give any explanation.

Second Absence Without Leave

The claimant again applied for leave from 25 February to 28 February 1994.

Executive director A approved two days out of the four days applied for and duly informed the claimant, but he did not return to work from 1 March 1994 to 5 March 1994.

When executive director A confronted the claimant after his return, the claimant said he had informed the telephone operator about his leave.

The managing director was briefed on this incident and decided to issue a second Show Cause Letter to the claimant, who did not give any explanation. A second Warning Letter was sent to him.

Third Absence Without Leave

The claimant again asked for leave from 16 March 1994 to 17 March 1994, and the leave was not approved by executive director A.

The claimant was informed of the refusal of his leave, but he, nevertheless, did not turn up for work from 16 March to 18 March 1994.

The claimant again refused to give any explanation and was issued a final warning letter.

The board of directors made a decision to dismiss the claimant, and a letter of dismissal dated 5 April 1994 was sent to the claimant.

The company contended that it had done more than required to be fair to the claimant before dismissing him.

The claimant

The claimant completely denied being absent without leave. He denied he had applied for leave on all three occasions. He denied the signature on the leave forms. He challenged the accuracy of the punch cards. The information brought out is that the company went out of its way to forge those documents produced as exhibits in Court and concocted the whole story to mislead the Court.

The claimant, however bizarrely, did not put his case on the authenticity of the leave forms when cross-examining the company’s witnesses. The claimant only cross-examined at great length and in minute detail the particulars contained in the leave forms, including whether the executive director was the proper authority to approve or disapprove leave in the company.

The claimant also complained that he was not given an opportunity to be heard by the company before the decision to dismiss him. This is a breach of his fundamental right guaranteed in s. 14 of the Employment Act 1955 .

The claimant further contended that there was no cogent evidence produced before the Court that the misconduct alleged was in fact, committed to justify the punishment of dismissal.

It is also the claimant’s contention that the company’s stand that it was unnecessary for a charge sheet to be given to the claimant for the reason of dismissal under s. 15(2) was a wrong statement of law. The law lays down the procedure for employer to impose disciplinary action after due inquiry.






The claimant in his testimony denied he had received the several warning letters and had no knowledge of their contents.

His defence is that he was framed for the three applications for leave on three separate occasions and his signature on the leave forms was forged.



The Evaluation Of Evidence And Findings

It is true that in a dispute for unfair dismissal the burden is on the employer to prove the employee’s misconduct to justify its action of dismissal.

The Court has thoroughly scrutinised the documentary and oral evidence of the company as against that of the claimant’s and has come to the finding that the company has established its case against the claimant.

The company has adduced evidence to show that an employee had to fill up the application form for leave prior to going on leave and submitted it for approval by the executive director. That was a definite procedure for employees to apply for leave.





The Witnesses

The company called five witnesses to give evidence that the claimant was absent without leave on three occasions when his application for leave was rejected. The witnesses included two senior executives of the company, the managing director and the executive director besides the executive from the assignor of the quarry operation.

The claimant admitted in his evidence he had no problem working with executive director and had never walked out from his job. Three witnesses had personal knowledge of the claimant’s absence when they communicated with each other, when the claimant was absent, not one occasion but on all the three occasions.

Their evidence was not rebutted and their corroboration remained intact. The claimant’s forgery defence had failed miserably.




The claimant’s witness stated in evidence that the claimant was warned once orally and twice in writing for being absent without leave. One of the written warnings as follows:


Kepada Encik RL, Pemandu Dumper.


Berhubung dengan perkara di atas, dimaklumkan bahawa RL k/p No. xxxxxxx telah tidak hadir bertugas pada 16 Mac, 1994 hingga 18 Mac, 1994 iaitu selama 3 hari.

2. Buat pengetahuan, amaran pertama dan amaran kedua pihak kami telahpun kemukakan tetapi tiada apa-apa tindakan dan perhatian yang diambil.

3. Saya berharap perkara ini dapat perhatian daripada pihak tuan. Segala kerjasama yang diberikan diucapkan terima kasih. Sekian.

Yang menjalankan tugas, signed … (MANAGING DIRECTOR) HARAPAN R SDN. BHD.

The claimant has not produced evidence to substantiate his allegation that his leave application forms and punch cards were forged.

The company had produced all the documents the claimant disputed before the Court and also had 5 witnesses to substantiate its allegation against the claimant.

Their evidence had withstood the cross examination by the claimant.

There is no reason for them to jointly concoct the story of absence without leave and to lie before this Court.

Hence, the Court accepts their evidence as true.




An employee’s entitlement to annual leave cannot be claimed as of right and he must obtain permission from his employer relieving him from duty of attending work. Unless the leave sought is granted, an employee cannot absent himself from duty and if he does, it is absence without leave, a fundamental breach of the employee’s contract of employment.

The claimant failed to obtain approval before proceeding on leave. The claimant, in fact, defiantly went against the company’s wishes when his leave was rejected, and went on leave. He did not only do it once but he did it 3 times.

The claimant could not justify his defiant attitude towards the question of his absence without leave. Therefore in his evidence before the Court he denied the whole affair. In the Court’s view this is an afterthought so clumsily presented and so untenable.

It is unthinkable to suggest that the managing director, the executive director, the supervisor and all those down the line conspired to get rid of the claimant who was just a driver by forging all the documents. Such a suggestion sounds hollow and unbelievable.






The conduct of the company towards the claimant has been one of extraordinary patience and forbearance.

The standard of fairness demonstrated by the company in this case far exceeds the reasonable standard expected of an employer before dismissing an employee for absence without leave.

The company had in fact bent backwards to accommodate the claimant but he went over the limit of tolerance.

He was absent without leave on three occasions and he also exceeded the leave he applied for by overstaying after his leave.




The claimant contends that the company failed to conduct an inquiry.

It is the opinion of the Court that the case of dismissal for misconduct is different from committing a fundamental breach of the contract of employment.

There is no need for an inquiry in the case of fundamental breach as compared to a case of dismissal for misconduct.




Section 15(2) of the Employment Act states follows:

(2) An employee shall be deemed to have broken 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 such excuse prior to or at the earliest opportunity during such absence.

《1955年劳工法令》第 15(2) 条文规定:

(2) 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,则应被视为违反了与雇主的雇佣合约;除非他有合理的理由缺勤,并在缺勤前或在缺勤期间尽早告知或试图告知雇主这种理由。

In the case of Gissco Sdn. Bhd. and Jagjit Singh Mahinder Singh (Award No. 36/88) , it was stated:

Furthermore, Section 15(2) of the Employment Act 1955 does not require an
inquiry - it is for the employee to give an explanation to the satisfaction of the employer why he was absent.

在 Gissco Sdn.Bhd. 和 Jagjit Singh Mahinder Singh(第36/88号裁决)一案中的裁决如此说:

此外,《1955年劳工法令》第15(2)条并不要求进行调查 -- 而是只需要雇员向雇主做出令满意的解释,以说明他为何缺席就行了。


The claimant was dismissed because he breached the provision of s. 15(2) of the Employment Act 1955.

That is to say, he absented himself on the three occasions. the Chairman is satisfied from the evidence adduced by the company that it was justified in its action against the claimant.

For the above reasons, the Court finds that the dismissal of the claimant is with just cause and excuse.

The claimant’s claim is dismissed.


法庭主席从该公司所提供的证据中确信,它对申诉人的行动(也就是说 – 解雇)是合理的。


Think (About It)

Could you please explain how the employer prevailed in this court case?


Our website's articles, templates, and material are solely for reference. Although we make every effort to keep the information up to date and accurate, we make no representations or warranties of any kind, either express or implied, regarding the website or the information, articles, templates, or related graphics that are contained on the website in terms of its completeness, accuracy, reliability, suitability, or availability. Therefore, any reliance on such information is strictly at your own risk.

Keep in touch with us so that you can receive timely updates |


1. Website ✍️ 2. Telegram ✍️ 3. Facebook ✍

4. Blog ✍ 5. Google ✍

6. LinkedIn ✍

Share the Post:

Related Posts