Introduction
Covid-19 has caused a significant impact on work and workers, and amongst them, is the rapid adoption of the Work from Home practice.
This alert will focus on whether employees can insist on working from home during this pandemic.
How Important Is It to Show Up at The Workplace?
As a general principle, it is misconduct for an employee to be absent without a valid reason.
In the Federal Court case of Pan Global Textiles Bhd Pulau Pinang v Ang Being Teik (2002) 1 CLJ, the employee did not report to work for 35 days and was given a dismissal letter. The Court quoted B.R Ghaiye’s ‘Misconduct in Employment’ that:
“No employee can claim as a matter of right leave of absence without permission and when there might be any permission for the same. Remaining absent without any permission, is therefore a gross violation of discipline”.
Furthermore, Section 15(2) of Employment Act 1955 confirms that 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 unless he has a reasonable excuse for such absence and has informed or attempted to inform his employer of such excuse prior to the absence or at the earliest opportunity during such absence.
What An Employer Can or Cannot Do?
The employer always has the right to request his workers to work from the office.
In the case of Anita Vijaya Rajah v Aru Anita & Associates [2014] 2 LNS 1028, the Industrial Court held that although the employee was initially given permission o work from home, the instruction by the employer requiring the employee to return to office was reasonable and justified, and should be obeyed. The Court held that the employee insisting to continue to work from home and refusing to obey the order was a just cause for her dismissal.
However, once the employer agrees that the employee can work from home, the employer cannot then use the employee’s absence as a reason to dismiss the employee.
In Lechemy Supramaniam v DHL Global Forwarding (M) Sdn Bhd [2015] 2 LNS 1142, the employee worked as an executive in the company and stated that it has been the practice of the company that employees are allowed to work from home on alternate working Saturdays using the broad-band service provided by the company. She had even obtained the employer’s approval to work from home although she contended that her employer had approved it verbally. The Court believed the employee and ruled that the employee’s dismissal by the company on the basis of absence was therfore without just cause or excuse.
Does It Make A Difference During the Covid-19 Period?
Currently, there is no Malaysian case law that is on point on this issue.
Occupational Safety and Health (Amendment) Bill 2020
However, the Occupational Safety and Health (Amendment) Bill 2020 (“OSHA Bill”) that has been passed by the House of Commons but has not come into force, may shed some light.
The OSHA Bill proposed a new Section 26A which states that an employee has the right to remove himself from his place of work or danger, if
(a) there is a reasonable justification to believe that there exists an imminent danger at his place of work; and
(b) the employer does not take any action to remedy this imminent danger even after being informed by the employee or his representative of the same.
Additionally, the OSHA Bill defines imminent danger as “a serious risk of death or serious body injury to any person that is caused by any plant, substance, condition, activity, process, practice, procedure or place of work hazard.”
It is very possible to interpret “imminent danger” to include the possibility of contracting Covid-19.
Thus, if an employee reasonably believes that there is a high risk of contracting Covid-19, he/she may rightly refuse to attend at the place of work, until the employer removes such risk.
This new provision will also interplay with the other sections of the OSHA, particularly section 15 (1) that imposes the duty of every employer and every self-employed person to ensure the safety, health, and welfare to work of all his employees.
These two sections when read together may become the guidance or basis for an employer to insist on a fully vaccinated workplace, as an employer may very well say that to comply with them, all employees have to be vaccinated to be in the office, and any employee who refuses to do so must work from home.
Employment (Amendment) Bill 2021
Secondly, the recently tabled Employment (Amendment) Bill 2021 is also worth paying attention to, as it seeks to introduce “Flexible Working Arrangement”.
The proposed Section 60P provides that an employee may apply to an employer for a flexible working arrangement that varies the hours of work, days of work or place of work in relation to his/her employment.
Upon the application being made, an employer shall within sixty days from the date of receipt of the application, approve or reject the application. The approval or rejection has to be in writing, and the employer must state his/her reason(s) should he/she chooses to reject the application.
However, the bill does not make it clear whether an employee can then make a complaint to the Director General of Human Resources should the employee be unsatisfied with the employer’s rejection and grounds for rejection.
Other Jurisdictions
Now looking to other countries, in the Ireland case of An Operations Coordinator v A Facilities Management Service Provider (ADJ-00028293), as her family members were in the ‘at risk’ category, an employee requested to work from home in rotation with her other two colleagues with similar covid-19 related concerns.
The request was rejected on the basis that their roles were not suitable for remote working but the employer indicated that there will be a range of precautionary measures provided in the workplace (including PPE, and changing the physical layout of the office by installing screens etc).
The employee ultimately resigned due to her employer’s refusal to accept her work from home proposal.
The Workplace Related Commission of Ireland held that the employee has satisfied both the contractual and reasonable conduct test for unfair constructive dismissal under Section 7 of the Unfair Dismissal Act 1977 (which is different from Malaysia’s law).
The Commission found that Covid-19 constituted a biological hazard, an employer’s compliance with statutory health and safety duties was an implied term in the employee’s employment contract, and that the rejection of the work from home proposal was a significant non-compliance with those duties that amounted to a repudiation of the employment contract.
The Commission held that it was reasonable for the employee to resign as she had articulated a clear grievance and the working from home proposal was an “eminently sensible suggestion”.
Conclusion
As there is currently no law and no cases expressly recognising an employee’s right to insist to work from home during the pandemic, an employer can rightly instruct all employees to return to the office now that work from office is allowed.
However, employers are advised to act reasonably and to empathise with the specific situation of each employee, particularly considering the nature of their job and risk profile.
After all, having a hybrid or fully remote work from home policy may be advantageous to the company, as the company can save on office space and office expenses such as water and electricity bills.
Employers are also advised to keep abreast of the developments of the law and seek legal advice to ensure that no laws are being breached at any time. Employers should also consider coming up with a work from home policy so that the company’s position is stated clearly, and the risk of an unfair or constructive dismissal claim can be reduced.
Authored with the assistance of my able interns, Ong Kai Ling & Lim Zhi Ying.