Tag: Warning Letter

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

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

    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‘)。

    争议是关于1994年4月5日,申诉人被公司解雇的问题。

    申诉人辩称,解雇是没有正当理由或借口的,并要求在不丧失福利下,恢复他以前的职位。

    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.

    申诉人完全否认未经休假而缺席,他否认他在所有三个场合都申请了休假;他否认请假单上的签名,他也对打卡的准确性提出质疑。所带出来的信息是,公司不惜伪造那些作为法庭证物的文件,编造了整个故事来误导法庭。

    然而,申诉人在盘问公司证人时并没有就请假单的真实性提出异议。索赔人对休假表格中包含的详细信息进行了详尽的盘问,包括执行董事是否有权批准或不批准公司的休假。

    申诉人还抱怨说,在决定解雇他之前,公司没有给他机会让他做出解释。这违反了《1955年劳工法令》第14条对员工所保障的基本权利。

    申诉人进一步争辩说,公司并没有向法庭提出有力的证据,证明所指控的不当行为确实存在,以作为解雇处罚的理由。

    申诉人还辩称,公司表明立场,在第15(2)条文下的解雇,公司是没有必要向申诉人提供指控表以告知被解雇的理由,这在法律上是错误的陈述。法律规定了雇主在进行适当调查后采取纪律处分的程序。

    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.

    申诉人在其证词中否认他收到过几封警告信,也不知道其内容。

    他的辩护是,他是在三个不同的场合被陷害申请休假的,他在休假表上的签名是伪造的。

    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.

    诚然,在不公平解雇的纠纷中,雇主有责任证明雇员的不当行为,以证明其解雇行为的合理性。

    法庭彻底审查了公司的文件和口头证据与申诉人的证据,并得出结论,公司已经建立了针对申诉人的案件。

    公司举出的证据显示,员工在休假前必须填写休假申请表并提交给执行董事批准。

    这是员工申请休假的一个明确程序。

    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.

    公司传唤了五名证人,以证明申诉人有三次请假申请被拒绝依然缺勤。证人包括公司的两名高级管理人员、总经理、执行董事,以及采石场业务转让方的管理人员。

    申诉人在他的证词中承认,他与执行董事在工作上没有出现任何的问题,也从未擅自离开工作岗位。三位证人在相互交流时,都清楚知道申诉人的缺席,而申诉人的缺席,并非只是一次而已,而是公司所提及的三次。

    他们的证据没有被反驳,他们的佐证完整。申诉人的辩护纯属无稽之谈。

    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:

    申诉人的证人在证据中说,因请假申请被拒绝而缺勤的申诉人,受到一次口头警告和两次书面警告。其中一次书面警告如下:

    Kepada Encik RL, Pemandu Dumper.

    AMARAN TERAKHIR TIDAK HADIR BERTUGAS

    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.

    申诉人没有拿出证据来证明他的休假申请表和打孔卡是伪造的指控。而公司也向法庭出示了申诉人所争议的所有文件,同时还有5名证人来证实其对申诉人的指控。

    他们的证据经得起申诉人的盘问,他们没有理由共同编造未经批准休假的故事并在法庭上撒谎。

    因此,法庭接受他们的证据。

    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.

    雇员享有的年假不能作为权利要求,他必须获得雇主的许可,免除他上班的义务。除非所申请的假期得到批准,否则雇员不能缺勤,如果他缺勤,就是未经许可的缺勤,原则上违反了雇员的雇佣合同。

    申诉人在休假前没有获得批准。事实上,当他的休假被拒绝时,申诉人却轻蔑地违背了公司的意愿,去休假。他不仅缺勤了一次,而且还缺勤了三次。

    申诉人无法证明他在未经批准休假的问题上,所采取的蔑视态度是合理的。

    因此,在他向法庭提供的证据中,他否认了整个事件。在法庭看来,这是一个事后的想法,陈述得如此笨拙,如此站不住脚。

    如果说总经理、执行董事、主管和所有下级人员合谋通过伪造所有文件来摆脱只是一名司机的申诉人,这是不可想象的。这样的建议听起来很空洞,令人难以置信。

    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.

    该公司对申诉人的行为是一种特别的耐心和宽容。该公司在本案中表现出的公平标准,远远超过了雇主在解雇未经批准而缺勤雇员的合理标准。

    事实上,公司已经弯下腰来照顾申诉人,但他却超过了容忍的限度。

    他有三次未经批准而缺勤,而且在请假后逾期不归,也超过了他申请的假期。

    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.

    申诉人辩称,公司没有进行内部听证会(调查)。

    法庭却认为,因行为不当而被解雇的情况,与原则上违反雇用合约的情况不同。

    与因行为不当而被解雇的案件相比,原则上违反雇用合约的案件是没有必要进行调查的。

    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。

    Conclusion

    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.

    申诉人被解雇是因为他违反了《1955年劳工法令》第15(2)条的规定,也就是说,他在这三个段落缺勤。

    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。

    基于上述原因,法庭认为解雇申诉人是有正当理由和借口的。因此,驳回申诉人的索赔。

    Think (About It)

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

    请你解释一下雇主是如何在这个法庭案件中获胜的?

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    20
  • 2. Absence From Work Without Permission

    2. Absence From Work Without Permission

    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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    其实“雇佣法令 Employment Act” 更新不止如此而已。对!不止如此而已哦!更新还包括:-

    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

    你是否很头痛,这么多的更新,到底要如何实现?Cynthia老师与Mr Chin (十面埋伏)老师将在来临的25-26.6.2022为你讲解全套的雇佣法令(包括更新)与实践方案。对!课程不止讲解更新哦!是A-Z的雇佣法令课程哦!

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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.
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